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IMPLEMENTATION OF THE RIGHT TO OBTAIN LEGAL ASSISTANCE FOR POOR CITIZENS
AT THE INVESTIGATION STAGE
Oktri Sasmita Yudha
Pengadilan Negeri Tanjung Karang, Indonesia,E-mail:oktri.sasmita191010@students.unila.ac.id
Submitted: December 27, 2022; Reviewed: February 08, 2023; Accepted: February 13, 2023 DOI: 10.25041/cepalo.v7no1.2833
Abstract
Legal Aid is a right owned by a suspect/defendant to assist the suspect/defendant at various stages of the ongoing trial process. Investigators at this stage of the investigation process are required to give suspects the right to be accompanied by legal advisers regardless of the economic status of the suspect so that during the investigation process, the suspect becomes a subject and not an object and is treated equally before the law without discriminating between economic status. The problem in this article is implementing the right to legal Aid for the poor at the investigation stage and what funds are the inhibiting factors in implementing the right to legal Aid for the poor at the investigation stage. The method used in this study uses an empirical normative method with a statute approach. The results and discussion in this study indicate that several efforts are needed to increase effectiveness, including throwing the quality of advocate human resources, signing a joint commitment/agreement between law enforcement officials regarding the implementation of the provision of legal Aid, giving strict rewards and punishments to Legal Aid Organizations.
Keywords: Investigations, Legal Protection, Poor Citizens
A. Introduction
The process of criminal justice begins with an allegation, which is then followed by an investigation. In the meantime, investigations are conducted to determine whether further investigation of a suspected criminal act is warranted in the criminal justice system, accompanied by legal Aid that acts as a step-by-step companion for the suspect/defendant from the examination phase to the decision-making phase1. The legal assistance provided is a process of self-defense for the accused and aims to protect the suspect's legal rights; moreover, the suspect is legally illiterate, especially for suspects from underprivileged groups2. Legal assistance given to suspects should ideally be given at the beginning of the case, starting at the police process until the suspect has finished serving his sentence.
1 Arafat, Muhammad Rushli. "Application of Legal Aid in the Investigation Process with the Accusatoir Principle." Pena Justisia: Communication Media and Legal Studies 18, no. 1 (2020) p. 14-23, http://dx.doi.org/10.31941/pj.v18i1.1085
2 Bawono, Bambang Tri. "Juridical Review of Suspect's Rights in Preliminary Examination." Journal of Law 26, no. 2 (2022):
550-570.
Bandar Lampung, Lampung, Indonesia.
E-ISSN: 2598-3105 P-ISSN:2723-2581 http://jurnal.fh.unila.ac.id/index.php/cepalo
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Protecting suspects from the arbitrariness of law enforcement officials, who frequently treat the accused as an object, is another crucial aspect of legal Aid and seems to discriminate between suspects based on economic status. Law enforcement officers frequently take detrimental actions against the suspect when conducting investigations. Everyone must be treated equally before the law in the rule of law, especially suspects from disadvantaged circles.
The right to legal protection is one of every person's fundamental rights, and the right to legal assistance is one of its manifestations. Legal Aid has a significant meaning for a person dealing with legal issues, mainly if that person is "legally illiterate." As a result, the Government has regulated the issue of legal Aid in several laws, including Law Number 8 of 1981 concerning the Criminal Procedure Code (KUHAP), Law Number 8 of 2003 concerning Advocates, and Law Number 48 of 2009 concerning Judicial Power.
The purpose of legal Aid is to assist judges in disclosing material truths, even though this is contrary to a subjective viewpoint that favors the suspect/defendant. In addition, legal Aid serves to protect the rights of suspects. In this sentence, Legal Aid is the object, and legal advisors are subject; legal assistance can be provided in the form of legal advisors whose job it is to provide legal assistance to protect the rights of suspects during the trial process, as stated in Pasal 54 KUHAP, which reads: "In the interest of defense, a suspect or defendant has the right to receive legal assistance from one or more legal advisers during the time and at every level of examination, according to the procedures determined in this law."
So that a suspect/defendant is required to be accompanied by an attorney throughout the entire criminal trial process, following Article 27 paragraph (1) letter a Regulation of the Head of the Indonesian National Police No. 8 of 2009 concerning the Implementation of Human Rights Principles and Standards in the work of the national police, the so-called rights of suspects must be respected and obeyed by every law enforcement officer."Every officer who examines a witness, suspect or examinee is obliged to: provide an opportunity for the witness, suspect or examinee to contact and be accompanied by a lawyer before the examination begins."
So that the rights of suspects/defendants are not lost or violated, it can be said that legal assistance to suspects/defendants is significant; however, in practice, the rights of suspects to obtain legal assistance are frequently disregarded by investigators. A suspect or defendant has the right to receive legal assistance at various stages of the ongoing trial process. At the preliminary examination stage, it is strongly advised to be accompanied by a lawyer, as it is feared that the suspect is an average citizen who does not understand the law. Following what is stated in Pasal 69 KUHAP, investigators must grant the suspect the right to be accompanied by legal counsel so that the suspect becomes a subject and not an object during the investigation.
"Legal advisers have the right to contact suspects from the moment they are arrested or detained at all levels of examination according to the procedures specified in this law," and performed equally before the law regardless of economic status.
Legal assistance for suspects/defendants is carried out to avoid discriminatory treatment and arbitrary actions by investigators and investigators following what is stated in Pasal 114 KUHAP, which reads: "If a person is suspected of having committed a criminal act before the commencement of the examination by the investigator, the investigator is obliged to notify him of his right to obtain legal assistance or that he is obligated to be accompanied by a legal adviser in his case as stipulated in Article 56”, and preventing actions that seem like discriminating against a person before the law based on his economic status.
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Novelty, the results and discussion in this study indicate that several efforts are needed to increase effectiveness, including improving the quality of advocate human resources, signing a joint commitment/agreement between law enforcement officials regarding the implementation of the provision of legal Aid, giving strict rewards and punishments to Legal Aid Organizations.
A lack of awareness and understanding of the law by law enforcers causes violations of the suspect's rights. The general public still does not understand that everyone with the status of a suspect or defendant has rights that no one, including law enforcers, can violate. This is why legal assistance for suspects/defendants is necessary, as it aims to eliminate violations of suspects' rights. Based on the preceding explanation of the background, the issue addressed in this article is how the right to obtain legal assistance is exercised against perpetrators of criminal acts at the investigative level and what factors impede efforts to exercise this right. This article investigates the application of the right to legal assistance to perpetrators of criminal acts at the investigative level and the factors that impede efforts to exercise the right to obtain legal assistance against such perpetrators.
B. Discussion
1. Implementation Of The Right To Obtain Legal Assistance For Poor Citizens At The Investigation Stage
If a person with the status of a suspect is proven to have committed a crime, he will be processed according to applicable law.3 At the stage of the investigation and investigation process as an investigator, it is obligatory to inform about the assistance of legal advisors. The case can be continued if the suspect does not have legal advisor assistance.4 Constitutionally, the provision of legal Aid is very clearly guaranteed, so the Government, with the authority it has regulated more specifically regarding the provision of legal Aid, which is nothing but a form of state responsibility for its citizens, therefore the Government, by Law Number 14 of 1970 concerning Main Provisions of Judicial Power as amended by Law Number 35 of 1999 concerning Amendments to Law Number 14 of 1970 concerning Main Provisions of Judicial Power then amended by Law No. 48 of 2009 concerning Judicial Power, namely in Article 56 that "Every person who is involved in a case has the right to obtain legal assistance.”5
The Government's role in protecting human rights, especially legal Aid, has subsequently been regulated in Undang-Undang Nomor 8 Tahun 1981 tentang Kitab Undang-undang Hukum Acara Pidana (KUHAP), namely in Pasal 54, which confirms that in the interests of defense, a suspect or defendant has the right to receive assistance. Law from one or more legal advisers over time and at each level of examination. Legal Aid is assistance provided by experts to those who need the realization or realization of their rights and legal protection6. Erni Widhayanti conveyed another opinion; legal Aid is essentially an effort to provide legal Aid and legal services to the community to obtain and enjoy their rights granted by law in the criminal justice process. At the seminar on the development of the legal profession, the understanding of legal Aid is that legal Aid consists of legal assistance inside and outside the court. The provision of
3Manao, Disiplin F. "Penyelesaian Penyalahgunaan Wewenang Oleh Aparatur Pemerintah Dari Segi Hukum Administrasi Dihubungkan Dengan Tindak Pidana Korupsi." Jurnal Wawasan Yuridika 2, no. 1 (2018): 1-23.
http://dx.doi.org/10.25072/jwy.v2i1.158
4 Hutahaean, Armunanto, and Erlyn Indarti. "Investigating Institutions in the Integrated Criminal Justice System in Indonesia."
Journal of Indonesian Legislation 16, no. 1 (2019): 27-41.
5 Osula, Anna Maria. "Mutual Legal Assistance & Other Mechanisms for Accessing Extraterritorially Located Data." Masaryk University Journal of Law and Technology 9, no. 1 (2015): 43-64.
6 Swire, Peter, and Justin D. Hemmings. "Mutual legal assistance in an era of globalized communications: the analogy to the Visa Waiver Program." NYU Ann. surv. Am. L. 71 (2015): 687.
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legal Aid in court raises the problem of verplichte procurstelling, which means that the rights and obligations to obtain legal Aid are served as follows: 7
b. Requiring the court to appoint directly or through an advocate legal professional organization to assist or anyone dealing before the court.
c. Requiring someone from the profession to provide legal assistance mentioned above.
In the process of providing legal Aid, the stages that have been carried out can be in the form of:
a. The stage of examining the suspect
This stage is based on the provisions of Pasal 114 KUHAP, namely that prior to an examination, investigators and investigators must notify the suspect's right to obtain legal assistance.
b. The stage of providing legal Aid
Here the investigator can present a cooperating legal aid provider, then the investigator can appoint several legal advisers, and then the suspect chooses him, or if there is one, the suspect can use a legal advisor appointed by the suspect himself. The provision of legal assistance can be carried out through communication with the suspect by approaching the suspect within a period of 3 days to find out the legal problems experienced by the suspect.
Essentially, a suspect may choose his or her own attorney. Suspects can receive legal Aid by submitting a written application that includes their identity and a brief description of the subject matter for which legal Aid is sough, and by submitting documents related to the case he is facing.8 Suspects who are accompanied by legal counsel are permitted to contact their attorneys from the earliest stages of the examination procedure. The investigator can then provide a written statement that the suspect is accompanied by a legal counsel after the suspect has appointed one. The legal counsel will coordinate with the investigator to ensure that the suspect is accompanied by a legal counsel; therefore, the legal counsel's power of attorney can be used to accompany the suspect during the investigation process.9
In accordance with Pasal 54 KUHAP, investigators are required to provide legal assistance to defend suspects, who are entitled to legal assistance from lawyers at any stage of an investigation in order to defend themselves. According to Pasal 114 KUHAP, the assistance of legal counsel is required because, under the Criminal Procedure Code, a suspect has the right to legal representation in order to obtain justice. This right may be exercised by the suspect from the beginning of the investigation and investigation process until the trial process.10
The existence of legal protection is a manifestation of a legal action provided by the state and Government to its citizens. The legal protection obtained by the suspect adjusts to the rights possessed by the suspect, namely:11
1. Legal protection comes from legal institutions
If the suspect has committed a crime, he or she is entitled to legal protection, which is legal representation. Legal Aid is intended to ensure and uphold the suspect's right to justice throughout all proceedings, including pre-trial, pretrial, and trial proceedings. Legal aid institutions can provide suspects with confidence and justice to handle their cases so that fair trials can be conducted.
2. Legal protection comes from investigators
7 Swire, Peter, Justin D. Hemmings, and Suzanne Vergnollie. "A Mutual Legal Assistance Case Study: The United States and France." Wis. Int'l LJ 34 (2016): 323.
8 Bawono, Bambang Tri. "Juridical Review of Suspect's Rights in Preliminary Examination." Journal of Law 26, no. 2 (2022):
550-570.
9 Abdullah, Junaidi S. "Study of Article 56 of the Criminal Procedure Code Regarding Appointment of Legal Counsel Is a Human Right of the Suspect/Defendant." Lex Crimen 4, no. 7 (2015):68.
10 Sigiro, Tioneni. "Implementation of Accusator Principles by the National Police in Investigating Criminal Acts at the Dairi Police." (2018): 2.
11 Liunsili, Ongki. "Legal Protection of Suspects at the Investigative Level in Criminal Cases Viewed from the Criminal Procedure Code." Lex Crimen 6, no. 1 (2017):9.
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Legal protection from investigators is crucial because it can provide suspects with a sense of security and protect their rights. In the course of investigation and investigation, an investigation is conducted with the intent of providing the accused with information. The existence of legal protection for investigators enables suspects to be investigated and investigated so that suspects' rights can be protected. Legal protection for researchers is a requirement that must be met in the performance of their duties. The legal protection of investigators and investigative authorities can aid in the development of a just legal system.
Suspects who are accompanied by legal counsel have shorter detention periods and faster case file submission, and they state unequivocally that they are not being threatened because the lawyer explains the suspect's actions. Counsels and suspects are always accompanied by legal advisors, so that the legal advisors can help explain the chronology of the suspects' crimes.
The suspect who was not accompanied by legal counsel was threatened with an extension of detention and the submission of his or her file, and the suspect was unable to explain whether or not the threat had been received. The police accompanied him. During the examination and investigation, the defendant provided a timeline of his crimes. Implementation of the suspect's right to legal counsel during the investigation phase is a function of the investigators themselves.12
Legal advisor assistance as a form of legal Aid is legal services provided by legal advisors that can be offered to various groups who need legal advisers. According to Binzaid Kadafi, the role of legal advisors is to accompany suspects at all stages from the investigation process to trial, namely:13
1. Legal advisors have a role to assist judges in expressing the truth and supervising the judicial process from the level of inquiry, investigation, examination to trials in court and determining policies in the justice system after going through the investigative and investigative processes.
2. Legal advisers carry out dispute resolution through mediation for disputes outside the investigation, if the suspect requests it.
3. Legal advisers have the right to receive news and related judicial administration services to use the handling of cases they are handling so that they can help tell the truth.
4. Legal advisers who will accompansugiy the suspect before trial to speak the truth or help convey the truth and seek justice.
5. Legal advisers who will accompany the suspect before trial to speak the truth or help convey the truth and seek justice.
In comparison to the United States, anyone accused of a crime carrying a prison sentence of over six months has a constitutional right to a jury trial. It is generally accepted that juries consider evidence and testimony to determine questions of fact, while judges rule on legal issues. There has been extensive discussion regarding the advantages and disadvantages of the jury system, the competence or lack thereof of jurors as fact-finders, and uniformity. or the irregularities in the administration of justice by jurors. As fact-finders, juries are expected to serve as lie detectors. Regarding the application of a suspect's rights, American law holds that an individual is presumed innocent until proven guilty. A jury need not be absolutely convinced that the defendant is innocent. The only requirement is that they have a reasonable question in mind. The jury must find the suspect not guilty unless they are convinced of his or her guilt.
12 Suswantoro, Suswantoro, Slamet Suhartono, and Fajar Sugianto. "Legal Protection for Suspects Within the Deadline for Investigation of General Crimes According to Human Rights." Magnum Opus Law Journal 1, no. 1 (2018): 44.
13 Tolib Effendi, S. H. The Criminal Justice System: A Comparison of Components and Processes of the Criminal Justice System in Several Countries. MediaPressindo, 2018, p. 14
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The jury convenes in private to reach a decision. The majority of states require all jurors in criminal trials to reach a unanimous verdict.14
Thus, it can be said that investigators permit suspects to be accompanied by legal counsel during examinations, during which legal counsel may be present and participate. Legal counsel can aid suspects in conducting legal proceedings in accordance with applicable laws. The presence of legal counsel can encourage a suspect to say what he believes to be true. The role of legal counsel in any litigation is crucial. Attorneys play an important role in assisting suspects. The investigator's legal counsel has the right to request a copy of the investigation file for use in his defense. In accordance with Pasal 124 KUHAP, legal counsel can also determine whether or not the arrest of the accused is lawful. Legal counsel creates equitable and optimal laws.
Based on Pasal 4 ayat (2) dan (3) Undang-Undang Nomor 16 Tahun 2011, it is determined that legal Aid provided by legal aid providers to legal aid recipients includes matters of civil, criminal and state administrative law, both litigation and non-litigation. Such legal assistance includes exercising power of attorney, accompanying, representing, defending, and/or taking other legal actions for the legal interests of the legal aid recipient.
The provision of legal Aid to recipients of legal Aid includes acts of exercising power of attorney, accompanying, representing, defending, and/or taking other legal actions for the legal interests of the recipient of legal Aid. The provisions of Article 15 paragraph 5 and Article 18 of Law Number 16 of 2011 stipulate the conditions and procedures for providing legal Aid and distributing legal aid funds will be further regulated in a Government Regulation. To implement these provisions, Government Regulation Number 42 of 2013 concerning Terms and Procedures for Providing Legal Aid and Distribution of Legal Aid Funds. This regulation regulates the terms and procedures for funding and providing legal Aid in Indonesia.15
As stated in Article 1 of the Law Republic of Indonesia Number 16 of 2011 concerning Legal Aid namely:16
a. Recipients of Legal Aid are people or groups of poor people.
b. Legal Aid Provider is a legal aid institution or organization society that provides Legal Aid services based on this Act.
c. Minister is the minister who organizes government affairs in field of law and human rights.
d. Legal Aid Standards are guidelines for the implementation of the provision of Aid The law determined by the Minister.
e. Kode Etik Advokat adalah kode etik yang ditetapkan oleh organisasi profesi advokat yang berlaku bagi Advokat
2. Inhibiting Factors In Implementing The Right To Legal Aid For The Poor At The Investigation Stage
This illustrates that the implementation of legal Aid has not been maximized and optimal for people or groups of poor people, then this can occur due to several factors. Factors inhibiting the implementation of assistance law for people or groups of poor people, if studied from Lawrence M. Friedman's legal systems theory and the concept of factors that affect law enforcement of law from Soerjono Soekanto, with refers to the research results obtained, can be classified and differentiated into 3 factors namely:17
14 West Java Regional Office of the Ministry of Law and Human Rights. 2013. The Existence of the Jury System in the United States Criminal Justice System. https://jabar.kemenkumham.go.id/berita-kanwil/berita-utama/eksisten-sistem-juri-dalam- sistem-peradilan-pidana-amerika-serikat (accessed December 4, 2022).
15 Oki Wahju Budijanto, Peningkatan Akses Bantuan Hukum Kepada Masyarakat Miskin (intensify access of law aids to the poor). Jakarta : 2016. De Jure. Volume 16, Nomor 4, Desember 2016.
16 M. Yahya Harahap, Pembahasan Permasalahan dan Penerapan KUHAP Penyidikan dan Penuntutan, (Jakarta:Sinar Grafika, 2006), p. 350.
17 Oki Wahju Budijanto, Op. Cit.
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a. Legal Substance
The legal substance factor in this case includes: Legislation. Legislation is written regulations that contain legal norms, which include types and hierarchy of Legislation as regulated in Pasal 7 ayat (1) Undang-Undang Republik Indonesia Nomor 12 Tahun 2011 Tentang Pembentukan Peraturan Perundang-Undangan. The factor of legal substance, as Lawrence M. Friedman has explained, can be seen that, legal substance is composed of rules and regulations regarding how these institutions must behave, which in this case is in the form of Legislation. Soerjono Soekanto in his description only limited the law to factors.
In the implementation of the provision of legal Aid in West Kalimantan, it must still be guided by the relevant laws and regulations or regulate legal Aid. Law enforcement officials involved in the implementation of legal Aid must always be guided by these laws and implement every action in carrying out their duties. The substance of the law, namely good laws and regulations, should be prepared in a comprehensive and responsive manner, but the laws and regulations governing legal Aid still contain weaknesses and deficiencies which of course hinder the implementation of legal Aid provided to people or groups of poor people.
b. Legal Structure
Legal structure factors in this discussion include law enforcement factors and facilities or facilities. The law enforcement factor in this discussion will be limited to those who are directly involved in law enforcement, as stated by Soerjono Soekanto "law will be limited to those who are directly involved in law enforcement which does not only include law enforcement, but also peace maintenance”.
c. Legal Culture
The legal culture factor in this discussion includes factors of legal culture or culture and society. Legal culture can include values regarding law, values in the form of concepts about what is considered good and bad, attitudes related to behavior related to law and law enforcement officials, as well as behavior from the community itself that occurs repeatedly or an element of social attitudes and values, which refers to the parts that exist in general culture- customs, opinions, ways of acting and thinking. And according to Soerjono Soekanto, law enforcement comes from society and aims to achieve peace in society. Therefore, from a certain point of view, society can influence law enforcement.
C. Conclusion
The availability of legal assistance for drivers or protectors makes it possible for passengers to freely provide the information they believe to be accurate, and legal counselors can ensure the efficient handling of cases and provide justice for convenience. Providing legal assistance to residents entails upholding their rights and responsibilities, but there are still elements of law enforcement that do not provide their rights of prosecution in practice. In every case, attorneys are required because suspects may not comprehend the charges against them. The objective of legal Aid for suspects is to eliminate discriminatory treatment and arbitrariness on the part of investigators so that the services of suspects are no longer the subject of investigations.
According to an investigation conducted by investigators, this did not go well, as it was evident from the stages of the suspect's examination that no legal counsel was consulted. The legal protection of suspects is still deemed insufficient. Providing legal assistance to suspects or defendants can be a means or facility for regulating the actions of law enforcement and investigative officials, who frequently disregard the presumption of innocence. The ethics of law enforcement officers have a substantial effect on police procedures that protect suspects' rights.
The provision of legal Aid to recipients of legal Aid includes acts of exercising power of attorney, accompanying, representing, defending, and/or taking other legal actions for the legal interests of the recipient of legal Aid. The provisions of Article 15 paragraph 5 and Article 18 of Law Number 16 of 2011 stipulate the conditions and procedures for providing legal Aid and
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distributing legal aid funds will be further regulated in a Government Regulation. To implement these provisions, Peraturan Pemerintah Nomor 42 Tahun 2013 Tentang Syarat dan Tata Cara Pemberian Bantuan Hukum dan Penyaluran Dana Bantuan Hukum. This regulation regulates the terms and procedures for funding and providing legal Aid in Indonesia.
This illustrates that the implementation of legal Aid has not been maximized and optimal for people or groups of poor people, then this can be occurs due to several factors. Factors inhibiting the implementation of assistance law for people or groups of poor people, if studied from Lawrence M. Friedman's legal systems theory and the concept of factors which affect law enforcement of law from Soerjono Soekanto, with refers to the research results obtained, can be classified and differentiated into 3 factors namely, legal substance factor, legal structure, legal culture.
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